Vaughn Palmer: B.C. Liberals stain their ‘mining-friendly’ reputation

Vaughn Palmer, Vancouver Sun columnist01.07.2014

This forest service road near Morrison Lake is part of existing infrastructure that could be used by Pacific Booker Minerals, which has faced a winding road as it advances its Morrison copper/gold mine project northeast of Smithers.

Related

VICTORIA — The B.C. Liberals have decided not to challenge a court judgment that found two cabinet ministers and a senior official guilty of procedural unfairness in rejecting a proposed $2.5-billion mining project at Morrison Lake northeast of Smithers.

“We’re not going to appeal,” Mines Minister Bill Bennett said in an interview Tuesday, pretty much conceding that the court’s criticism of the government conduct was correct.

The decision means that Pacific Booker Minerals, would-be developer of the open-pit copper, gold and molybdenum mine, will finally have a chance to defend its proposal against last-minute objections that led to it being denied an environmental approval certificate back in September 2012.

Those included impact on sockeye salmon in Morrison Lake, part of the Skeena River headwaters, and opposition from local First Nations.

The public company, whose shares trade on the TSX Venture exchange, will also be making its pitch to a different ministerial lineup than the one that turned it down 18 months ago. Then mines minister Rich Coleman and environment minister Terry Lake have been replaced by Mary Polak and Bennett, respectively.

“We’ll see what they say,” said Bennett, hastening to add that the opportunity for the company to make its case does not necessarily mean the government will reverse its earlier conclusion that the project was too risky in environmental terms.

Still, the Liberal decision to throw in the towel represents a significant victory for Pacific Booker over a government that likes to style itself as friendly to mining development in B.C.

The company spent 10 years and an estimated $10 million jumping through regulatory hoops in pursuit of an environmental approval certificate.

Persistence paid off in late summer 2012 when a government-commissioned technical report acknowledged that Pacific Booker had identified, assessed and met the main challenges associated with the environmental approval process.

“Practical means have been identified to prevent or reduce any potential negative environmental, social, economic, heritage or health impacts of the project such that no direct or indirect significant adverse effect is predicted or expected,” said the report.

Those expectations were explicitly predicated on the successful implementation of some 32 mitigation measures and conditions, also set out in the technical report. Many were onerous. But presuming the company was prepared to meet them, the project appeared to be in line for approval.

The shocker came a little over a month later, when the company learned that despite the relatively favourable technical report, no approval certificate would be issued for the Morrison mine.

The cabinet, acting on advice contained in a separate report from the executive director for environmental assessment Derek Sturko, had concluded there was too much risk associated with the project.

Never having been given a chance to respond to the unfavourable assessment, Pacific Booker went to court. And in a decision rendered in early December, B.C. Supreme Court Justice Kenneth Affleck agreed the process “failed to comport with the requirements of procedural fairness.”

He found that the mining company had been encouraged to participate in every step of the environmental assessment process except the last one.

“The petitioner legitimately believed that if the assessment report concluded that a project would result in no significant adverse effects, the executive director would not be overtly hostile to the issuance of a certificate,” wrote the judge. “It was reasonable to expect to be able to respond if concerns were raised by the executive director himself of such significance that he would recommend against granting the certificate.”

Instead, the company’s “complaint is that in the final crucial stage of the referral to the ministers, when the executive director firmly put his thumb on the scale, the petitioner could not see that he had done so, let alone [have] the opportunity to attempt to restore the balance.”

The perception of a thumb on the scales led the judge to order the ministers to reconsider the application, first allowing the company to respond to the concerns in the 2012 report from the then-executive director. (Sturko has since been promoted to deputy minister of agriculture.)

“I would not suggest that everything was done perfectly,” conceded Bennett. “We need to amend our process so we don’t end up in this particular circumstance again.”

But as noted above, that’s a long way from saying that he and Polak will come to a different conclusion than the one reached by Coleman and Lake.

Among the concerns that led to the earlier rejection was the mine developer’s proposal to contain all of the mine tailings within a pond lined by an experimental synthetic material covering some five square kilometres.

“Unprecedented,” Bennett called it Tuesday, suggesting that he is far from persuaded that that aspect of the project should be green-lighted.

I asked Bennett, a self-styled free enterpriser, whether government should be second-guessing private investors on their willingness to risk their own money on developing a mine.

He said the question is one he’s struggled with over the years. But with unproven measures to mitigate environmental risk, he’s concluded that “it’s better to say ‘no’ early in the process than to have them fail later,” thereby sending a discouraging message to other potential investors.

Vaughn Palmer: B.C. Liberals stain their ‘mining-friendly’ reputation

Video

Today's Headline Videos

Best of Postmedia

To steel himself for the year-long journey that began Wednesday, Jonathan Pitre has been going over the hard calculus that underpins his decision to pursue a high-risk, high-reward treatment in Minnesota

When he woke up in tears the morning after he had cried himself to sleep, Rohit Saxena knew what he had to do. Leaving his wife, Lesley, asleep in bed, Rohit went downstairs, opened his laptop and began to write. “They say your kids are your hearts outside your body,” he wrote. “I’ll always be […]

Almost Done!

Postmedia wants to improve your reading experience as well as share the best deals and promotions from our advertisers with you. The information below will be used to optimize the content and make ads across the network more relevant to you. You can always change the information you share with us by editing your profile.

By clicking "Create Account", I hearby grant permission to Postmedia to use my account information to create my account.

I also accept and agree to be bound by Postmedia's Terms and Conditions with respect to my use of the Site and I have read and understand Postmedia's Privacy Statement. I consent to the collection, use, maintenance, and disclosure of my information in accordance with the Postmedia's Privacy Policy.

Postmedia wants to improve your reading experience as well as share the best deals and promotions from our advertisers with you. The information below will be used to optimize the content and make ads across the network more relevant to you. You can always change the information you share with us by editing your profile.

By clicking "Create Account", I hearby grant permission to Postmedia to use my account information to create my account.

I also accept and agree to be bound by Postmedia's Terms and Conditions with respect to my use of the Site and I have read and understand Postmedia's Privacy Statement. I consent to the collection, use, maintenance, and disclosure of my information in accordance with the Postmedia's Privacy Policy.